Exhibit
10.6.2
PAETEC
CORP.
SENIOR OFFICER
CONFIDENTIALITY, NON-SOLICITATION,
NON-COMPETITION AND SEVERANCE
AGREEMENT
This Senior Officer Confidentiality,
Non-Solicitation, Non-Competition and Severance Agreement (this
“Agreement”) is entered into as of the date set forth
on the signature page hereto between PaeTec Corp., a Delaware
corporation, including any and all subsidiaries and affiliates of
PaeTec Corp., including but not limited to PaeTec Communications,
Inc., as well as any successors or assigns of PaeTec Corp. and/or
its subsidiaries and affiliates (collectively, the
“Company”), and
(“you”).
WHEREAS, the Company now has and
expects to develop confidential and proprietary materials and
highly sensitive information of immeasurable value, which you
recognize must be carefully protected as set forth below for the
Company to be successful;
NOW, THEREFORE, to induce the
Company to continue to employ you, and in consideration of your
continued employment by the Company and other good and valuable
consideration as set forth below of which you expressly
acknowledge, the Company and you hereby agree, intending to be
legally bound, as follows:
1. Defined Terms.
For purposes of this Agreement,
termination for “Cause” shall mean termination
of your employment with the Company due to: (1) material
failure or refusal to perform the duties assigned to you, provided
that the Company’s Chief Executive Officer (or the
Company’s Board of Directors if you are the Company’s
Chief Executive Officer) gives you a written notice of your refusal
to perform such duties or comply with such direction and 20 days to
remedy such refusal, and further provided that such duties or
directions are not inconsistent with those of other individuals
reporting directly to the Company’s Chief Executive Officer
or the Company’s Board of Directors, (2) your refusal to
follow the reasonable directives of the Board of Directors or Chief
Executive Officer of the Company, provided that the Company’s
Chief Executive Officer (or the Company’s Board of Directors
if you are the Company’s Chief Executive Officer) gives you a
written notice of your refusal to perform such direction and 20
days to remedy such refusal, and further provided that such
directions are not inconsistent with those of other individuals
reporting directly to the Company’s Chief Executive Officer
or the Company’s Board of Directors, or (3) conviction
of a felony.
For purposes of this Agreement, a
“ Change of Control Transaction ” shall be
deemed to have occurred if (a) a transaction is made and
consummated involving the sale of all or substantially all of the
Company’s assets, or the sale of a majority of its
outstanding shares, whether by way of merger, consolidation,
business combination or otherwise; or (b) a tender offer or
exchange offer is made and consummated in a transaction for the
ownership of securities of the Company representing more than 50
percent of the combined voting power of the Company’s then
outstanding voting securities.
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For purposes of this Agreement,
“ Disability ” means your “permanent and
total disability” within the meaning of Section 22(e)(3)
of the Internal Revenue Code of 1986, as now in effect or as
hereafter amended.
For purposes of this Agreement,
termination for “Good Reason” shall mean
termination of your employment with the Company due to:
(a) your assignment without your consent to a position,
responsibilities, or duties of a materially lesser status or degree
of responsibility than your position, responsibilities, or duties
as of the date of this Agreement; (b) any action by the
Company to reduce your base salary by any amount at any time;
(c) the relocation of the Company’s principal executive
offices outside the metropolitan Rochester, N.Y. area; (d) the
requirement by the Company that you be based anywhere other than
your current metropolitan location without your consent; or
(e) you electing, for any reason or for no reason at all, to
voluntarily resign from the Company at any time during the first
ninety (90) days after the date of closing of any Change of
Control Transaction (as that term is defined above).
2.
Confidentiality.
You acknowledge that you will be
provided access to Company Confidential Information and will occupy
a position of trust and confidence with respect to the
Company’s affairs and business. “Company Confidential
Information” includes, but is not limited to, all information
and materials related to existing computer software and hardware,
computer software and hardware in any stage of research and
development, research, business procedures and strategies,
marketing plans and strategies, customer lists, financial data,
technical and laboratory data and/or specifications related to the
Company’s products and services, and any other information
that is not generally known to the public or within the industry in
which the Company competes.
You agree to take all reasonable
steps to preserve the confidential and proprietary nature of
Company Confidential Information and to prevent the inadvertent or
accidental disclosure of Company Confidential Information. You
agree that during your employment with the Company and thereafter,
you will not use, disclose, transfer, or remove from the
Company’s premises any Company Confidential Information other
than as authorized by the Company. You agree to return to the
Company all Company Confidential Information and copies thereof at
any time upon the request of the Company. Your obligations under
this section entitled “Confidentiality” shall continue
after termination of your Service to the Company.
You further agree not to disclose to
the Company or use in the Company’s business any idea,
invention, work of authorship or other information or material
relating to the business of any third person and intended by that
person not to be disclosed to the Company.
3.
Non-Competition.
For a period of two years after
termination or resignation of your employment with the Company
(regardless of the reason for your termination or resignation), you
shall not, directly or indirectly:
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a.
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solicit or serve clients,
customers, or employees of the Company, whether for your own
account or as an employee, shareholder, partner, officer,
member,
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